Opinion
NO. 2011-CA-001443-MR
02-08-2013
CLIFTON RAYMOND GOFF APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL JR., JUDGE
ACTION NO. 10-CR-01353
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. CAPERTON, JUDGE: Clifton Raymond Goff appeals from a Fayette Circuit Court judgment after entering a plea of guilty to several drug-related charges. His plea was conditioned on his right to appeal the trial court's denial of his motion to suppress evidence found in a search of his home.
Goff was charged with three felony counts of trafficking in a controlled substance. When the police went to his home to arrest him on those charges, they found marijuana and drug paraphernalia. Goff unsuccessfully moved to suppress this evidence. He then entered a plea of guilty to amended charges of one count of first-degree trafficking in a controlled substance, one count of first-degree possession of a controlled substance and one count of possession of marijuana. He received concurrent sentences of five years, four years and forty-five days, respectively. Goff reserved the right to appeal the denial of his motion to suppress as it relates to the evidence supporting the possession charge only and so now appeals.
At the outset we note that our review:
[O]n a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).
In this case, the trial court's findings of fact, which were delivered verbally, are disputed. At the suppression hearing, Detective McBride testified that he and Detective Ford went to Goff's apartment, without a warrant, to arrest him for three counts of trafficking. Detective McBride knocked on the door of the apartment and asked Goff if they could step inside. Goff consented. According to the statement of facts in Goff's brief, however, the officers first told Goff they were there to arrest him and then asked to come inside. The Commonwealth contends that no evidence was presented at the hearing that the events occurred in this sequence. In his reply brief, Goff states that he relied on the trial court's finding that "as soon as the detectives were given consent and came into the apartment they did advise Mr. Goff he was under arrest for three controlled buys by the CI [confidential informant]. So, he was under arrest at that time, upon initial entry." Goff argues that this finding at least establishes that the request for entry and telling Goff that he was under arrest was "contemporaneous." We interpret the trial court's findings to mean that Goff gave consent for the officers to enter, and was informed that he was under arrest shortly after they had done so. These findings are supported by substantial evidence and are therefore conclusive.
Detective McBride testified that Goff was not given a Miranda warning following the arrest. Instead, Detective McBride informed Goff that "We have three charges of trafficking in the first degree against you and are placing you under arrest. Do you have any narcotics in your home?" According to McBride, Goff replied, "No, go ahead and search." Goff testified that he could not remember if McBride asked to search the apartment, but he was "pretty sure" that he did not. McBride then went down the hallway to the master bedroom, opened a dresser drawer and found a wooden box containing some marijuana roaches and drug paraphernalia.
The trial court found that Detective McBride was "pretty unequivocal that he did in fact ask . . . for consent to search the apartment." The appellant and the Commonwealth agree that this finding is not supported by substantial evidence. Our review of the record confirms that Detective McBride did not ask permission to search the home; he only asked Goff whether there were any other drugs in the house. Goff then invited McBride to search the residence.
The trial court found that Goff had consented to the police entering his apartment. The trial court further found that, although no Miranda warning was given, it was "an academic issue, it seems to me, because there are really no statements that Mr. Goff allegedly made and answered questioning that were incriminating. . . . I don't remember hearing any argument that there were any statements made that were sought to be suppressed."
On appeal, Goff argues that the Commonwealth failed to meet its burden of proving: (1) that he gave valid consent to the initial entry of the police into his home; and (2) that he voluntarily consented to the search of his home.
Goff concedes that his argument relating to the validity of his consent to the initial entry into his home is unpreserved. He nonetheless asks that we review the issue for palpable error under Kentucky Rules of Criminal Procedure (RCr) 10.26.
The trial court found that Goff gave valid consent to the initial entry by the police pursuant to the "knock and talk" procedure which was deemed to be constitutional in Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008).
As we have already noted in our review of the factual findings, Goff was only informed that he was under arrest after the police had entered his home. There is no evidence that the initial entry of the police into his home was the result of coercion.
As to Goff's argument that the Commonwealth failed to prove he gave valid consent to the warrantless search of his home, the testimony at the hearing supports only the conclusion that Goff invited the police to search the residence after he was asked whether there were any narcotics present. McBride's question to Goff regarding whether there were any drugs in the home, without any previous Miranda warning, was improper because it was clearly "calculated to elicit an incriminating response." Taylor v. Commonwealth, 182 S.W.3d 521, 523-24 (Ky. 2006). Goff was responsive to the question asked by the officers by saying "no", but then continued with the statement "go ahead and search". We liken his unsolicited response to a unwarned voluntary statement.
In United States v. Patane, 542 U.S. 630, 634, 124 S.Ct. 2620, 2624, 159 L.Ed.2d 667 (2004), the Supreme Court held that the failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements because the introduction at trial of physical evidence does not implicate the Self-Incrimination Clause, which Miranda is designed to protect. See also Welch v. Commonwealth, 149 S.W.3d 407, 412 (Ky. 2004) (noting that Patane supports the view that unwarned but voluntary statements are subject to the exclusionary rule, but that the physical fruits of those statements are not).
The Fayette Circuit Court did not err in denying the motion to suppress, and its judgment is therefore affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE Jack Conway
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General
Frankfort, Kentucky